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Joslin v. Cowee.

gotten gains from one commodity or product to that of another, he can, even through the agency of metaphysics or logic, secure from the courts an indorsement of such fraudulent devices. And this I am prepared to hold, how skillfully soever the argument may be framed, or how eloquently or plausibly soever it may be presented. The courts, whenever their aid is invoked, in such cases, will look at the animus of the transaction, and declare the transaction a nullity, when conceived and carried out in fraud. Such transactions are not merely deteasible or voidable, requiring legal action to effect it; they are absolutely void at the option of the vendor, unless the defrauded party waives his right by unreasonable delay in making his demand; though I do by no means deny that there is a class of cases which, under other circumstances, sustain the theory and the law as contended for by the defendant's counsel. They do not, however, apply to this class of frauds.

The question of unreasonable delay on the part of the plaintiff is not made a point in the case. The delivery of this wool to Alden, Frink & Co. gave them no title to it. They obtained ten sacks on the day of the agreement, the 17th, and twenty-one sacks on the 18th, all of which, it seems, was put in the process of manufacture; and on the next day, Friday, the 19th, they assigned it, with other property, to Thompson & Sons and Rockwell to secure their prior indebtedness and liabilities. These assignees were not in law absolute and bona fide purchasers. Their title was no better than that of Alden, Frink & Co. They parted with no consideration at the time, and their assumption of wages to hands was not at all equal to the value of other property assigned at the same time, from which they realized more than the assumed liability, and which it must be assumed was legally assigned, and out of which they must pay such wages, if at all. The assignment itself is

Joslin v. Cowee.

evidence that the assignees were not absolute purchasers, but merely trustees of the estate assigned.

Nor is it denied that there is a large class of cases in which the doctrine is established that a bona fide purchaser from a fraudulent vendee acquires a good title; but we need not in this case draw the distinction in regard to such as do, and such as do not, come within that rule. This case does not come within the rule. Cowee, the defendant, not only took the wool in question from the assignees of Alden, Frink & Co. as trustees, and not as absolute purchasers, on the day they got their assignment of the same, but before he paid anything thereon, or became liable for wages, he was served with full notice of the plaintiff's claim, and of the fraud by which the wool was obtained. He was not a bona fide purchaser, and can claim no protection as such. It is only innocent purchasers, who purchase property converted into a different species, that can be protected; and not even the innocent purchaser is so protected, who takes the title from a trespasser or wrongdoer ; because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. (Silsbury v. McCoon, 3 N. Y. 384.) The case of Nichols v. Michaels, 23 N. Y. 264,) does not sustain the position that fraud in the sale renders the sale only voidable, as to the vendor, of whom the property was fraudulently purchased. It does indeed hold that as to the vendee upon whom a fraud has been committed, it is voidable at the option of the vendee.

It is claimed by the defendant that the second assignment by Alden, Frink & Co. of the surplus, to the plaintiff and others, after paying the first assignees, was a ratification of the sale of the wool. The referee has nowhere found as a fact, that the plaintiff either ratified such assignment, or even knew the fact that such an assignment had been made in his (plaintiff's) favor. Such

Shields v. Shields.

assignment bears date Saturday the 20th of October, and on Monday, the 22d of the same month, the plaintiff, in writing, expressly repudiated and rescinded the contract of sale, and demanded the wool; and for caution, it wonld seem, on the trial the plaintiff tendered a release of all interest in such second assignment; though it does appear that the plaintiff's factors, Rankin & Co., accepted the second assignment conditionally, that it should not affect the plaintiff's right to bring an action to recover the wool. The right or authority of Rankin & Co. to make a conditional agreement, or any agreement, for the plaintiff, after the fraud, to ratify it conditionally or otherwise, was not discussed upon the argument.

No other point of merit is presented, that requires discussion. I have not been able to find a sufficient cause for reversing the judgment, and think it must be affirmed, with costs.

Judgment affirmed.

(THIRD DEPARTMENT, GENERAL TERM, at Binghamton, June 6, 1871. Miller, P. J., and Potter and Parker, Justices.)

69 66 5h 546

JAMES B. SHIELDS, appellant, vs. ELIZABETH SHIELDS,

Executrix &c., respondent.

In every case, when a complaint is made to a surrogate, under the provisions

of the Revised Statutes, that the circumstances of a person appointed executor are so "precarious” as not to afford adequate security for his due administration of the estate, (2 R. S. 72, \ 18,) it must depend upon its own peculiar features and circumstances; of which the surrogate is the appropriate

judge. The circumstances of an executor are precarious, within the meaning and intent

of the statute, only when his character and conduct present such evidence of improvidence or recklessness in the management of the trust estate, or of his own, as in the opinion of prudent and discreet men endangers its security.

Shields v. Shields.

Though bankruptcy might furnish a reason for superseding an executor,

poverty does not. The selection of a trustee is an indication of the highest degree of personal

confidence; and character, rather than pecuniary responsibility, controls the selection. And it would be arbitrary, as well as unjust, for a court to adjudge that a person of sufficient capacity to make a will had not enough to select a trustee to manage the estate as executor.

NHIS is an appeal from the order of the surrogate of

Washington county dismissing the plaintiff's complaint. The plaintiff, by his complaint, asked for an order to supersede the defendant, and to enjoin her from further acting as executrix of the will of her deceased husband; and for such other order in the case as should tend to the security and due administration of the said estate. The complaint alleged the making and due proof of the will of the deceased, the issuing of letters testamentary to the defendant as sole executrix, an interest of the plaintiff in the estate of the deceased; and alleged that the circumstances of the defendant were so precarious as not to afford adequate security for her administration. That the estate was of about the value of $7000, of which the use of about $6000 was given to the defendant for life, with full power to the defendant of sale and disposition; and that she, the defendant, was worth but a small sum, except what was so given her in said will.

Upon filing this complaint, verified, the surrogate issued a citation to the defendant to show cause why she should not be superseded. Parties appeared by their proctors. The defendant moved to set aside the order as improvidently granted and unauthorized, and raised the point that the objections should have been filed before the letters were granted. The surrogate denied this motion, and heard the testimony. The defendant was sworn on the part of the plaintiff, and testified that she owned no real estate in her own name, nor any personal property, except her husband's property, and never had any since

Shields v. Shields.

her marriage; she had some money when she was married, that went into her husband's hands. The defendant was then sworn on her own behalf, and testified that she was acquainted with the real estate of her father, (the testator,) which was worth about $5000. Did not know whether it was mortgaged, or whether the testator was in debt. One Lendrum was then sworn on the part of the defendant executrix, and testified that the testator called upon him to write the will, and spoke of his wife as an excellent manager, and as having helped to make the property, and that he had perfect confidence in her management. There was no other material evidence, except the will itself. The case was argued and submitted to the surrogate, who dismissed the complaint, and made an order to that effect, and gave the following as the grounds of his decision :

1. There is no proof of anything wrong on the part of the executrix, or that she is insolvent.

2. Nor that she is about to dispose of the real estate, or has shown any intention to do so.

3. Her husband expressed full confidence in her, when he made his will, and made her the sole executrix of the

There is no reason to believe that she will violate her oath of oflice.

4. Should any danger to any part of the estate arise, the complainant can then apply for additional security.

From this order there was an appeal to this court.

same.

Boies & Thomas, for the plaintiff.

M. Fairchild, for the defendant.

By the Court, POTTER, J. Letters testamentary may be, and should be, granted by the surrogate at any time after the will shall be proved, to the person or persons named in the will as executors, unless an affidavit is made and filed by the widow, legatee, next of kin, or creditor of the

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